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EU Studies 'Parasitic Copying'

AMSTERDAM, the Netherlands – The rapidly growing number of frame copycats was a much discussed topic at last December’s Taichung Bike Week. In particular carbon frame makers are faced with more and more patent infringements and outright copies. To fight such unlawful competition the European Union published a report on the existing legal protection in the EU member states against “parasitic copying”.

One of the aims of this study, conducted by Hogan Lovells International LLP, was to identify whether the current protection available to brand owners to prevent parasitic copying is sufficient to ensure free and effective competition.

According to this study the differences in the legal regimes between EU member states allow parasitic copying to flourish in some countries better than others where it is more controlled. Such legal differences exist despite the harmonization of the registered trade marks and industrial designs since the establishment of the EU internal market in 1993.

Even though the protection available in all member states should be identical in respect of trade mark law the approaches to deal with common problems differ across the EU. The reasons why they differ may depend on how such an issue was historically dealt with in each country but also on how EU law has been interpreted.

As a result of the legal diversity the rights of trade mark holders are inconsistent and lead to different results in different Member States. The study, published mid January, provides the basis for a new reflection on the adequacy of the current legal framework throughout the European Union.

The study recommends that any parasitic copying legislation should include a clear and precise indication of its aims and objectives to make it entirely clear to a member state when the approach it had previously adopted is insufficient and/or inapplicable. Next to that specialist courts should be the only judicial arena in which claims relating to parasitic copying claims are heard.

One comment

Victor

A frame is a frame and even among major brands you'd be hard pressed to tell some of them apart if you saw them in the "nude" without paint and logos.

Additionally, a large number of European brands use re-branded off-the shelf models whose designs belong to the factory that made them, not to the brands that use them.

This also becomes an argument of "who was first" and how unique an idea or design can be in a single end use market. Also who does the design belong to, the factory that made the frame, or to the brand that claims ownership and invention of the design?

We get copied a fair bit, but I see the copies as "homage" products since it would be foolish to claim that any bike design is ground breaking and new and that nobody else could come up with something similar, or that it was not done in the past and forgotten...